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And mere conquest does not set aside even political institutions and officers until such conquest is ratified by treaty.'




§ 155. By Grotius treaties are classified as those which are in accordance with natural right and justice, and those which provide for indifferent matters, involv- tion of ing no moral issue. Subsequent authors have spoken treaties. of the same distinction as "constitutive," based on rules of right, and regulative," which establish positive rules concerning matters of policy. Hooker expresses the same distinction by the terms "moral" and "positive." Another distinction is that between "conventions" which are limited to particular persons, or to a particular event, and "treaties," which are permanent arrangements. A distinction is also made between treaties which are strictly bilateral, and treaties which leave it open for other states to come in. In the latter case, if one state violates the treaty, all others coming in may have redress.

So far as concerns their application to international law, treaties may be divided as follows:

1st. Those which profess to be interpretative of the law of nations, and which are entitled to high respect as showing what in the sense of the parties the law of nations is.

2d. Those which undertake to make new rules for the amendment of the law of nations, as was the case with the treaty of Washington of 1871; which rules, however, are not to be regarded as generally authoritative, unless adopted by all the leading powers, and only bind the consenting parties when it is so expressly and unreservedly agreed.2

3d. Those which determine some particular fact in dispute between the nations, and which are of value only as exhibiting the sense of the parties as to a concrete case.3

Clark v. U. S., 3 Wash. C. C. 104; U. S. v. Hayward, 2 Gall. 485.

As to rules proposed in the treaty of Washington, see infra, §§ 238, 244

et seq.; Whart. Crim. Law, 8th ed., §§ 1904 et seq.

3 See Lorimer's Law of Nations, 43; infra, § 159.


§ 156. We have already incidentally noticed treaties by which one state guarantees the performance of a Guaranty duty by another state. This may be either an obligatory duty, or a duty involving a cession of territory. The guarantor is obliged to use all his force to compel the performance. In many modern treaties to this is added the provision that litigated questions are to be referred to an arbiter.2

Treaties as



§ 157. Treaties, in the main, are subject to the same rules as contracts. These may be specified as follows:(1) There must be freedom of action. This does from con- not, in the one case, require that there should be an abstinence from all influence. Neither a contract nor a treaty is abrogated because there was a strong pressure to exact its signature, nor because its signature was a choice of evils. "Coactus volui," while it implies a strong pressure, implies also volition. But while contracts, which are coerced by physical force, do not bind it is otherwise with treaties. A treaty is not invalidated by the fact that it is exacted from a conquered state by a victorious general armed with irresisti ble engines of destruction.3

(2) There must be a concurrence of minds to one and the same thing.

(3) The interpretation of obscure terms in a treaty is a matter of fact, as to which extrinsic evidence may be taken. for the purpose of explaining objective obscurity.

(4) Construction of treaties is a matter of law, to be gov erned by the same rules, mutatis mutandis, as prevail in the construction of contracts and statutes."

(5) As contracts may be modified and rescinded, so may treaties

(6) Immoral stipulations are as void in treaties as they are in contracts.

On the other hand, treaties are distinguished from contracts as follows:

1 Supra, §§ 149-50.

2 Infra, § 208.

* Infra, § 593.

4 Infra, §§ 664 et seq.; see Foster v. Neilson, 2 Pet. 253.

5 Infra, § 161.

(1) Contracts (unless we regard marriage as a contract) are, in all cases, the subjects of a suit for debt or damages, or for a specific thing. But no such suit lies on breach of treaty.

(2) Contracts can only be vacated or rescinded by consent, or by the action of a court. But this is not necessarily the case with a treaty. There is no court which can be appealed to to dissolve it; and when one party violates its terms, the practice is for the other party to declare it not to be any longer binding.

(3) While a contract may be annulled on the ground of fraudulent influence exercised by strength over weakness, such a reason cannot be set up for regarding a treaty as a nullity, since all nations are supposed to stand on the same footing with equal opportunities of detecting fraud. And there are many cases of finesse and false coloring or suppression of facts which would avoid contracts, which would not, mutatis mutandis, avoid a treaty. If suppressio veri abrogated treaties to the extent it abrogates contracts, few treaties would stand.

(4) A treaty based upon a war accepts the results determined by the war, unless otherwise provided, while a contract does not necessarily assume the existing relations of the parties as a basis.1

(5) A consideration is essential to give effect to a contract, but it is possible to conceive of a treaty which has no consideration. A state, for instance, may, without any detriment

"The uti possidetis is the basis of every treaty of peace, unless it be otherwise agreed. Peace gives a final and perfect title to captures without condemnation; and as it forbids all force, it destroys all hopes of recovery (of vessels) as much as if the vessel was carried infra praesidia, and condemned.” 1 Kent's Com., 174, citing The Legal Tender, reported in Wheat Dig. 302; The Schooner Sophie, 6 Rob. Ad. 138. Special treaties between particular nations are to be distinguished from international engagements made between several nations to settle some general question of international law.

A refusal by one party to perform his share in execution of a treaty releases the other. With general international engagements-(e. g., that prohibiting the use of explosive compounds), the same result does not follow. The treaty remains, and if one of the parties refuses to do his part, he may be mulcted by reprisals. A partial repeal of such a treaty does not affect other portions of the treaty. This is the case with some of the settlements of the congress of Vienna, which remain in general force, notwithstanding some partial modification.

to itself, enter into a treaty stipulation by which much advantage is gained by another contracting party, but this is nevertheless a treaty.

(6) A contract, if duly executed by an agent with full powers, binds the principal. This, however, according to modern practice, is not the case with treaties, which a sovereign may refuse to ratify even if signed according to his instructions.


must be

duly authorized, and when requisite, must

§ 158. A treaty to be valid, must be duly executed by a party authorized to do so by the sovereigns concerned. If the ambassador has exceeded his instructions, or if any extraordinary incident has intervened such as would justify a principal in refusing ratification to his agent's acts, then ratification may be refused by the sovereign to whom such treaty is submitted for his action.1

be ratified.

Supra, § 144. In the United States a treaty to bind must be approved by a majority of two-thirds of the senate. But, even after such approval, ratification, in the cases put in the text, may be refused, so far as concerns foreign states, by the president. Klüber, § 142; Hartmann, § 46; infra, § 505. He may be impeachable in his own country for so doing, but as to the con stitutionality of his action foreign states cannot inquire. A treaty, it should be added, may be tacitly ratified in states where there is no constitutional inhibition in the way.

The ratification of a treaty relates back to the time of signing (Hylton v. Brown, 1 Wash. C. C. 298); but the treaty does not impose penal responsibility on those carrying on the war after the conclusion of the peace when such parties were ignorant of the treaty. 1 Kent's Com., 171; Hylton v. Brown, 1 Wash. C. C. 298. Whether there is civil liability on the part of an officer who makes captures after conclusion of

peace, he being ignorant of the fact, has been doubted. Lord Stowell held that the officer actually doing the harm might be held responsible, but not his superior officer, who was in no way concerned in the commission of the injury. The Mentor, 1 Rob. Ad. 170; see the Ostsee, 9 Moore, P. C. 150.

That ratification is generally essential see Lawrence's Wheaton, p. 452. note 151. Speech of M. Guizot, Moniteur, Feb. 1, 1843; 1 Ortolan, Diplomatie de la Mer, 85–89.

That the rule in Great Britain is that a treaty does not become absolutely binding until it has been ratified, see speech of Mr. Gladstone, in parliament, Aug. 10, 1870. See, also, 1 Fiore, Nouv. Droit Itern., 476. But ratification may be dispensed with by a secret protocol annexed to the treaty (Lawrence's Wheaton, p. 454).

That treaties and statutes come in pari passu, see infra, §§ 383, 506.

Only the

parties to a bound by its terms.

treaty are

§ 159. The fact that a majority of civilized states agree to a particular reform does not make such a reform obligatory on dissenting states, though it binds the states signing. The agreement by a majority of the states, for instance, making privateering and the slave trade piracy, does not bind states not signing.1 It is argued by Holtzendorff, however, that propositions assented to by a great majority of powers for the amelioration of the severities of war (e. g., the neutralization of hospitals) do not lose their general effect by the dissent of a small minority; but this position cannot be accepted as a general rule. far as contains special treaties, only the parties, as a rule, are bound by them, though a state for whose protection a treaty is made may, by accepting its benefits, be bound by its provisions.3


§ 160. The securities which are provided for the due execution of treaties have been classified as follows:



(1) Solemn asseverations of fidelity. In the old granted on treaties, the "tres sainte et indivisible Trinité" was appealed to; in the treaty of Paris, the name "du Toutpuissant."

(2) Hostages used by the old practice to be given; and fortresses or other important sites were left in the hands of one of the parties until the treaty was fully complied with on

both sides.1



quent war and other

by subse

§ 161. Where a war takes place as to the subject-matter of a treaty, or is in any way induced by the treaty, the war abrogates the treaty. Stipulations in a treaty which do not concern the subject-matter of the war, though suspended by the war, revive on its termi. nation. Stipulations which concern the mode of carrying on war (e. g., as to the use of certain modes of warfare, or the neutralization of hospitals) continue in force during war.

1 Infra, § 201; see supra, § 155.

2 Thus the United States refuses to

be bound by the rule adopted by European powers as to privateering, infra, § 201.

3 Supra, § 155.


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